HomeMy WebLinkAbout04 - CC-8 - Approval of Agreement No. C-1-2394 - 2/15/2011CITY COUNCIL AGENDA REPORT
MEETING DATE: FEBRUARY 15, 2011
SUBJECT: APPROVAL OF AGREEMENT NO. C-1-2394 WITH THE ORANGE COUNTY
TRANSPORTATION AUTHORITY (OCTA) FOR THE FAIRVIEW PARK WETLANDS AND
RIPARIAN HABITAT PROJECT
DATE: FEBRUARY 3, 2011
FROM: PUBLIC SERVICES DEPARTMENT
PRESENTATION BY: PETER NAGHAVI, DIRECTOR, DEPARTMENT OF PUBLIC SERVICES
FOR FURTHER INFORMATION CONTACT: ERNESTO MUNOZ, CITY ENGINEER, (714) 754-5335
RECOMMENDATION:
Approve Agreement No. C-1-2394 (Attachment 1) with the Orange County
Transportation Authority (OCTA) for the use of Measure M (M2) Environmental
Mitigation Program (EMP) Grant funding in the amount of $2,000,000 for the
Fairview Park Wetlands and Riparian Habitat Project.
2. Authorize the Mayor and City Clerk to execute the agreement.
3. Approve Budget Adjustment No. 11-012 (Attachment 2) to recognize the grant and
appropriate funds for the Fairview Park Wetlands and Riparian Habitat Project.
BACKGROUND:
On November 7, 2006 voters approved M2 to fund transportation facility and service improvement
programs for a period of thirty years commencing on April 1, 2011. M2 provides for the allocation
of five percent (5%) of net freeway program revenues for mitigation of freeway projects. In Fiscal
Year 2009/10 the first allocation of EMP funding for countywide restoration projects was $5.5
million.
On September 27, 2010 the OCTA Board of Directors approved providing $2,000,000 of Fiscal
Year 2009/10 EMP funds for the City's Fairview Park Wetlands and Riparian Habitat Project.
Funding will be utilized for Phase II of the project which includes the construction of a water
delivery system from the Greenville -Banning Channel to the uppermost pond, the grading of
wetland ponds, planting of 23 acres of coastal sage scrub, native grassland, oak and alder
woodlands, wetland pond plantings, and the installation of an irrigation system. Phase I of the
project was completed in September 2009 and included the grading of wetland ponds and
streams, planting 17 acres of riparian habitat, and the installation of an irrigation system.
ANALYSIS:
The design of the Fairview Park Wetlands and Riparian Habitat Project, Phase II has been
completed and is ready to be advertised for construction. If the attached agreement is approved
by the City Council, the project will be advertised for construction immediately following the
execution of the agreement. Construction would begin in the spring of 2011 and be completed by
the spring of 2012. The City will be responsible for reporting the success of the project to the
California Department of Fish and Game and the U.S. Fish and Wildlife Service during
construction and through the plant establishment period for a total of eleven (11) years until 2022.
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The M2 Grant pays for the maintenance of the project during the first year and for the entire
monitoring and reporting period. The City will maintain the site in perpetuity after the first year of
maintenance has been completed.
ALTERNATIVES CONSIDERED:
The City Council may opt not to approve the attached agreement and forfeit the M2 Grant. This
action would delay the construction of the proposed Fairview Park Wetlands and Riparian Habitat
Project, Phase II improvements indefinitely until a new funding source is secured by staff.
FISCAL REVIEW:
The Budget Adjustment No. 11-012 increases revenue and appropriates $2,000,000 from the
M2 Grant to the Capital Improvement Project budget for the Fairview Park Wetlands and
Riparian Habitat Project.
Staff does not anticipate a City funded matching requirement to implement this phase of the
project. The $2,000,000 M2 Grant will be combined with the $350,000 donation from the
MiOcean Foundation for a total estimated project cost of $2,350,000.
LEGAL REVIEW:
The proposed agreement has been approved as to form by the City Attorney.
CONCLUSION:
It is recommended that the Council approve Agreement No. C-1-2394 with the Orange County
Transportation Authority (OCTA) for the use of Measure M (M2) Environmental Mitigation
Program grant funding in the amount of $2,000,000 for the Fairview Park Wetlands and
Riparian Habitat Project, authorize the Mayor and City Clerk to execute the agreement, and
approve the attached Budget Adjustment No. 11-012.
D
PETE AGHAVI, irectbr
Department of Public Services
COLLEEN O'DONOGHUE
Assistant Finance Director
Attachments: 1. Agreement No. C-1-2394
2. Budget Adjustment No. 11-012
C: City Manager
Assistant City Manager
City Attorney
City Clerk
Parks Project Manager
Contract Administrator
Ef
ERNEST UROZ
City Engineer
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ATTACHMENT 1
AGREEMENT NO. C-1-2394
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF COSTA MESA
THIS AGREEMENT is effective as of this 18th day of February 2011, by and between the
Orange County Transportation Authority, 550 South Main Street, P.O. Box 14184, Orange, CA 92863-
1584, a public corporation of the state of California (hereinafter referred to as "OCTA"), and City of
Costa Mesa, 77 Fair Drive, PO Box 1200, Costa Mesa, CA 92628, (hereinafter referred to as "CITY").
WITNESSETH:
WHEREAS, Voters approved the Measure M (M2) on November 7, 2006 whereby Ordinance
No. 3 outlines the M2 Transportation Ordinance and Investment Plan to fund transportation facility and
service improvement programs for a period of thirty years commencing on April 1, 2011. M2 provides
for the allocation of at least 5 percent of net freeway program revenues (or approximately $243.5 million
in 2005 dollars) for mitigation of freeway projects. The intent of the program is to provide for
comprehensive, rather than piecemeal, mitigation of the impacts of freeway projects and to do so in a
way that results in high-value environmental benefits in exchange for streamlined project approvals and
greater certainty in the delivery of the freeway program as a whole. The M2 Environmental Mitigation
Program (EMP) will provide approximately $27.5 million for acquisition and restoration projects for the
first tranche of funding, available beginning in Fiscal Year 2009/10. With a current allocation goal of 80
percent of funds for acquisition and 20 percent for restoration over the life of the freeway mitigation
program, the first tranche of funding will yield approximately $5.5 million towards restoration projects;
and
WHEREAS, OCTA will fund the Board of Directors (Board) approved restoration projects to
support permitting of freeway projects by the United States Fish and Wildlife Service and the California
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AGREEMENT NO. C-1-2394
Department of Fish and Game (Wildlife Agencies) for habitat and species impacts pursuant to a Habitat
Conservation Plan/Natural Community Conservation Plan (HCP/NCCP) currently under development;
and
WHEREAS, The restoration activities on the Fairview Park property (hereinafter referred to as
"PROJECT") of the CITY shall be implemented, maintained and monitored in accordance with the
Board approved EMP Restoration Funding Guidelines, reviewed and approved by OCTA and the
Wildlife Agencies and in accordance with the HCP/NCCP once it is completed and approved; and
WHEREAS, CITY is the PROJECT sponsor responsible for implementing, maintaining and
WHEREAS, said restoration activities cannot be performed by the regular employees of OCTA;
and
WHEREAS, OCTA has determined that CITY's Restoration Plan (Exhibit A) has met the
requirements of and is eligible for funding under the EMP Restoration Funding Guidelines; and
WHEREAS, OCTA and CITY agree that EMP funding is subject to CITY fulfilling EMP
Restoration Funding Guidelines requirements; and
WHEREAS, OCTA can update the EMP Restoration Funding Guidelines at least biennially
whereby the most recent update is incorporated herein by reference; and
WHEREAS, this Agreement defines the specific terms and conditions and funding
responsibilities between OCTA and CITY for the EMP.
NOW, THEREFORE, it is mutually understood and agreed by OCTA and CITY as follows:
ARTICLE 1. COMPLETE AGREEMENT
A. This Agreement, including all exhibits and documents incorporated herein and made
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AGREEMENT NO. C-1-2394
applicable by reference, constitutes the complete and exclusive statement of the terms and conditions
of the agreement between OCTA and CITY and it supersedes all prior representations, understandings
and communications. The invalidity in whole or in part of any term or condition of this Agreement shall
not affect the validity of other terms or conditions.
B. OCTA's failure to insist in any one or more instances upon the performance of any terms or
conditions of this Agreement shall not be construed as a waiver or relinquishment of OCTA's right to
such performance by CITY or to future performance of such terms or conditions and CITY obligation in
respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall
not be binding upon OCTAexcept when specifically confirmed in _writing by an authorized
representative of OCTA by way 6fal written Amendment to this Agreement and issued 16 accordance
with this Provisions --of this Agreement.
OCTA agreds to the following responsibilities for
A. OCTA shall allocate nt12. EMP funds as_
�rdance to the fund ing.allocatiorl'as outlined in A
3 and. _pay CITY in
and consistent with
requirements of -the Restoration Plan.
B. OCTA shall provide guidance and oversight of the M2 EMP funds in compliance with M2
EMP Restoration Funding Guidelines and other funding source(s) requirements.
C. OCTA shall remit to CITY within thirty (30) days of receipt of an acceptable initial
payment EMP invoice and within sixty (60) days for an acceptable final payment invoice,
reimbursement for restoration work up to the amount as per the September 27, 2010 Board -approved
funding allocation for the PROJECT.
D. OCTA, or agents of OCTA may upon close-out of PROJECT under this Agreement,
perform an audit and or technical review to ensure that EMP Restoration Funding Guidelines policies
and procedures were followed. Such audit shall be performed within one hundred eighty (180) days of
OCTA receiving the final report for PROJECT. If the audit or technical review determines that any of the
activities performed are ineligible for EMP funding, CITY shall return M2 EMP funding.
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AGREEMENT NO. C-1-2394
ARTICLE 3. RESPONSIBILITIES OF CITY
CITY agrees to the following responsibilities for PROJECT:
A. CITY or CITY's designee will act as the lead agency for all phases of PROJECT
approved for M2 EMP funding.
B. CITY agrees that M2 EMP funding is subject to CITY meeting all of the requirements
outlined in the M2 EMP Restoration Funding Guidelines.
C. CITY agrees to submit reporting and documentation in accordance to the requirements
outlined in the M2 EMP Restoration Funding Guidelines.
D. CITY agrees to implement and complete PROJECT funded under this Agreement in
accordance with the M2 EMP and application submitted to OCTA.
E. CITY--aarees'to obliaate: funds in the broarammed near in accordance with the EMP
F. CITY `agrees that OCTA reserves the riaht<to amend th[s,%
AGREEMENT NO. C-1-2394
The Chief Executive Officer of OCTA, or designee, shall have the authority to act for and
exercise any of the rights of OCTA as set forth in this Agreement.
ARTICLE 5. RESTORATION PLAN
A. CITY shall perform the work necessary to complete in a manner satisfactory to OCTA the
services set forth in the CITY -prepared "Restoration Plan," which is attached to and, by this reference,
incorporated in and made a part of this Agreement as Exhibit A. CITY shall provide the personnel listed
below to perform the above-specified services, which persons are hereby designated as key personnel
under this Agreement.
Robert Staples, Contract Administrator Project Administrator
B. No person named inparagraph A ofthis Article, or his/her successor approved by OCTA,
shall" be removed or replaced by CITY, nor shall his/her..gfeed-upork function or level of commitment
hereunder be changed, without the prior written°consent of OCTA, " Should the services of any key
persori become h6 longer available to CITY the resume and qualificatipns of the proposed "replacement
shall be submitted to OCTA for approval as soon as possible, but in no event later than seven (7)
calendar days prior to the departure of the incumbent key person, unless CITY is not provided with
such notice by the departing employee. OCTA shall respond to CITY within seven (7) calendar days
following receipt of these qualifications concerning acceptance of the candidate for replacement.
ARTICLE 6. TERM OF AGREEMENT
This Agreement shall commence upon the effective date of this Agreement, and shall continue
in full force and effect through the mitigation reporting and documenting period as set forth in the EMP
Restoration Funding Guidelines unless earlier terminated as provided hereunder.
ARTICLE 7. PAYMENT
A. For CITY's full and complete performance of its obligations under this Agreement and
subject to the maximum cumulative payment obligation provision set forth in Article 88, OCTA shall pay
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AGREEMENT NO. C-1-2394
CITY on a firm fixed price basis in the amount of $2,000,000 in accordance with the following
provisions.
B. The following schedule shall establish the firm fixed payment to CITY by OCTA for each
work task set forth in the Restoration Plan.
Tasks Firm Fixed Price
Year 1-2011 $1.500,000
Task 1: Publicly Bid Restoration Project, Award Construction Contract
Task 2:Complete Water Delivery System and Grading of Ponds
Year 3-2013 $100,000
Task 1: Complete 1st Year Plant Establishment and Monitoring
Year 4-2014
Task 1: Complete 2nd Year Plant Establishment and Monitoring
$50,000
Year 5-2015
$20,000
Task 1: Complete 3rd Year Plant Establishment and Monitoring
Year 6-2016
$20,000
Task 1: Complete 4th Year Plant Establishment and Monitoring
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AGREEMENT NO. C-1-2394
Year 7-2017 $20,000
Task 1: Complete 5th Year Plant Establishment and Monitoring
Task 2: Submit Final Maintenance and Monitoring Report to Regulatory
Agencies for CSS. Wetlands and Native Grasslands
Year 8-2018 $10,000
Task 1: Complete 6'h Year Plant Establishment and Monitoring for Oak
Woodland
Year 9-2019 1$10,000
Year 10-2020
Task 1: Complete 8' Year Plant Establis
Year 12-2022 $10,000
Task 1: Complete 101h Year Plant Establishment and Monitoring for Oak
Woodland
Task 2: Submit Final Maintenance and Monitoring Report to Regulatory
Agencies for Oak Woodland
TOTAL2 000 000
C. CITY shall invoice OCTA at a minimum of at least once per quarter for payments
corresponding to the work actually completed by CITY. Percentage of work completed shall be
documented in a progress report prepared by CITY, which shall accompany each invoice submitted by
CITY. CITY shall also furnish such other information as may be requested by OCTA to substantiate the
validity of an -invoice. At its sole discretion, OCTA may decline to make full payment for any task listed
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AGREEMENT NO. C-1-2394
in paragraph B of this Article until such time as CITY has documented to OCTA's satisfaction, that CITY
has fully completed all work required under the task. OCTA's payment in full for any task completed
shall not constitute OCTA's final acceptance of CITY's work under such task.
D. Each invoice shall be accompanied by a progress report specified in paragraph B of this
Article. OCTA shall remit payment within thirty (30) calendar days of the receipt and approval of each
invoice. Each invoice shall include the following information:
1. Agreement No. C-1-2394:
2. The time period covered by the invoice;
3. Total invoice (including project -to -date cumulative invoice amount): andretention;
subcontractors and :suppliers: from the proceeds of the payments cotitered by the certification and; e)
The invoice does not include any amount which<CITY intends;to withhold or retain from a subcontractor
or supplier unless so identified on the invoice;
6. Any other information as agreed or otherwise requested by OCTA to substantiate
the validity of an invoice.
ARTICLE 8. MAXIMUM OBLIGATION
Notwithstanding any provisions of this Agreement to the contrary, OCTA and CITY mutually
agree that OCTA's maximum cumulative payment obligation (including obligation for CITY's profit) shall
be Two Million Dollars ($2,000,000.00) which shall include all amounts payable to CITY for its
subcontracts, leases, materials and costs arising from, or due to termination of, this Agreement.
ARTICLE 9. NOTICES
All notices hereunder and communications regarding the interpretation of the terms of this
Agreement, or changes thereto, shall be effected by delivery of said notices in person or by depositing
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AGREEMENT NO. C-1-2394
said notices in the U.S. mail, registered or certified mail, returned receipt requested, postage prepaid
and addressed as follows:
To CITY: To OCTA:
City of Costa Mesa Orange County Transportation Authority
77 Fair Drive, PO Box 1200 550 South Main Street
Costa Mesa, CA 92628 P.O. Box 14184
Orange, CA 92863-1584
OCTA. CITY shall pay all wages, salaries and other amounts due its employees in connection with this
Agreement and shall be responsible for all reports and obligations respecting them, such as social
security, income tax withholding, unemployment compensation, workers' compensation and similar
matters.
ARTICLE 11. INSURANCE
A. CITY shall procure and maintain insurance coverage during the entire term of this
Agreement. The following coverage shall be full coverage and not subject to self-insurance provision.
CITY shall provide the following insurance coverage:
1. Commercial General Liability, to include Products/Completed Operations,
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AGREEMENT NO. C-1-2394
Independent CITYs', Contractual Liability, and Personal Injury with a minimum limit of $1,000,000.00
per occurrence and $2,000,000.00 general aggregate.
2. Workers' Compensation with limits as required by the State of California including a
waiver of subrogation in favor of OCTA, its officers, directors, employees and agents;
3. Employers' Liability with minimum limits of $1,000,000.00; and
B. Proof of such coverage, in the form of an insurance company issued policy endorsement
and a broker -issued insurance certificate, must be received by OCTA prior to commencement of any
work. Proof of insurance coverage must be received by OCTA within ten (10) calendar days from the
to
of this Agreement with OCTA, its officers, directors, employees and agents designated as
the cteneral afid:automobile liability. Such
by
the
in tho amour is required from CITY as provided in this
ARTICLE 12. ORDER OF PRECEDENCE
Conflicting provisions hereof, if any, shall prevail in the following descending order of
precedence: (1) the provisions of this Agreement, including all exhibits; (2). the provisions of EMP
Restoration Funding Guidelines; (3) CITY's Restoration Plan dated November 3, 2010, and (4) all other
documents, if any, cited herein or incorporated by reference.
ARTICLE 13. CHANGES
By written notice or order, OCTA may, from time to time, order work suspension and/or make
changes in the general scope of this Agreement, including, but not limited to, the services furnished to
OCTA by CITY as described in the Restoration Plan. If any such work suspension or change causes
an increase or decrease in the price of this Agreement or in the time required for its performance, CITY
shall promptly notify OCTA thereof and assert its claim for adjustment within ten (10) days after the
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AGREEMENT NO. C-1-2394
change or work suspension is ordered, and an equitable adjustment shall be negotiated. However,
nothing in this clause shall excuse CITY from proceeding immediately with the Agreement as changed.
ARTICLE 14. DISPUTES
A. Except as otherwise provided in this Agreement, any dispute concerning a question of fact
arising under this Agreement which is not disposed of by supplemental agreement shall be decided by
OCTA's Director, Contracts Administration and Materials Management (CAMM), who shall reduce the
decision to writing and mail or otherwise furnish a copy thereof to CITY. The decision of the Director,
CAMM, shall be final and conclusive.
B. The provisions of this Article shall not be pleaded in any, suit involving a question_ of fact
evidence in supportof its appeal.
C'..Pending final decision of,'a dispute hereunder- CITY shall proceed diligently with the
performance of this Agreement and in accordance with the decision of OCTA's Director, CAMM. This
"Disputes" clause does not preclude consideration of questions of law in connection with decisions
provided for above. Nothing in this Agreement, however, shall be construed as making final the
decision of any OCTA official or representative on a question of law, which questions shall be settled in
accordance with the laws of the state of California.
ARTICLE 15. TERMINATION
A. OCTA may terminate this Agreement for its convenience any time, in whole or part, by
giving CITY written notice thereof. Upon said notice, OCTA shall pay CITY its allowable costs incurred
to date of termination and those allowable costs determined by OCTA to be reasonably necessary to
effect such termination. Thereafter, CITY shall have no further claims against OCTA under this
Agreement.
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AGREEMENT NO. C-1-2394
B. OCTA may terminate this Agreement for CITY's default if a federal or state proceeding for
the relief of debtors is undertaken by or against CITY, or if CITY makes an assignment for the benefit of
creditors, or for cause if CITY fails to perform in accordance with the Restoration Plan or breaches any
terms or violates any provisions of this Agreement and does not cure such breach or violation within ten
(10) calendar days after written notice thereof by OCTA.
ARTICLE 16. INDEMNIFICATION
CITY shall indemnify, defend and hold harmless OCTA, its officers, directors, employees and
agents from and against any and all claims (including attorneys' fees and reasonable expenses for
litigation or settlement) for any loss or damages, bodily injuries, including death, damage to or, loss of
use of propertyr caused by the negligent acts, omissions or willful misconduct by CITY,, its officers,
directors, employees, agents, subcontractors or suppliers in connection with or arising ;out of the
performance of this Agreement.
ARTICLE 17.' AUDIT AND INSPECTION OF RECORDS
CITY shall provide OCTA, or other agents of OCT -A :such access to CITY's accounting books,
records, work dataY 'documents and facilities, as OCTA deems necessary. CITY shall maintain such
books, recrirds, data and documents in accordance with generally accepted accounting p h iples and
shall clearly identify and make such items readily accessible to such parties during CITY's performance
hereunder and for a period of four (4) years from the date of final payment by OCTA. OCTA's right to
audit books and records directly related to this Agreement shall also extend to all first-tier
subcontractors identified in Article 16 of this Agreement. CITY shall permit any of the foregoing parties
to reproduce documents by any means whatsoever or to copy excerpts and transcriptions as
reasonably necessary.
ARTICLE 18. CONFLICT OF INTEREST
CITY agrees to avoid organizational conflicts of interest. An organizational conflict of interest
means that due to other activities, relationships or contracts, the CITY is unable, or potentially
unable to render impartial assistance or advice to the OCTA; CITY's objectivity in performing the
work identified in the Restoration Plan or might be otherwise impaired; or the CITY has an unfair
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AGREEMENT NO. C-1-2394
competitive advantage. CITY is obligated to fully disclose to the OCTA in writing Conflict of Interest
issues as soon as they are known to the CITY. All disclosures must be submitted in writing to OCTA
pursuant to the Notice provision herein. This disclosure requirement is for the entire term of this
Agreement.
Into' nn1.ection with its, performance under this Agreement, CITY shall not discriminate against
any employee or applicant for employment because of race, religion, color, sex, age or national origin.
CITY shall take affirmative action to ensure that applicants are employed, and that employees are
treated during their employment, without regard to their race, religion, color, sex, age or national origin.
Such actions shall include, but not be limited to, the following: employment, upgrading, demotion or
transfer; recruitment or recruitment advertising; layoff or termination; rates of pay or other forms of
compensation; and selection for training, including apprenticeship.
ARTICLE 22. PROHIBITED INTERESTS
CITY covenants that, for the term of this Agreement, no director, member, officer or employee of
OCTA during his/her tenure in office/employment or for one (1) year thereafter shall have any interest,
direct or indirect, in this Agreement or the proceeds thereof.
ARTICLE 23. OWNERSHIP OF REPORTS AND DOCUMENTS
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AGREEMENT NO. C-1-2394
A. The originals of all letters, documents, reports and other products and data produced under
this Agreement shall be delivered to, and become the property of OCTA. Copies may be made for
CITY's records but shall not be furnished to others without written authorization from OCTA. Such
deliverables shall be deemed works made for hire and all rights in copyright therein shall be retained by
OCTA. OCTA hereby grants exclusive use of deliverables by CITY for the purpose of publication in
peer-reviewed scientific journals and other research publications. CITY shall acknowledge OCTA in all
such publications.
B. All ideas, memoranda, specifications, plans, manufacturing, procedures, drawings,
descriptions, and all other written information submitted to CITY in connection with the performance of
this Agreement shall not, without prior written approval. of OCTA, be used for any purposes other than
the performance for thisproject or publication in scientific and research journals or, reports with
appropriate acknowledgement in accordance with paragraph A above,nor be disclosed to, . oil entity not
connected with the performance si the project. CITY sha(f;comply with QCTAs;policies regarding such
material. Nothing furnished d CITY, which is otherwise known to CITY or becomes generally known to
the related industryshall ba deemed confidential. CITY shall not use OCTA's name, photographs of
the proeet .or, any other publicity pertaining to the project in' any magazine, trade paper newspaper,
seminar or other medium without the express written consent of OCTA, with the exception of scientific
and research reports and journals in accordance with paragraph A above.
C. No copies, sketches, computer graphics or graphs, including graphic art work, are to be
released by CITY to any other person or agency except after prior written approval by OCTA, except as
necessary for the performance of services under this Agreement. All press releases, including graphic
display information to be published in newspapers, magazines, etc., are to be handled only by OCTA
unless otherwise agreed to by CITY and OCTA. CITY may discuss and/or display images of, and
general (non-technical and non -confidential) information about the PROJECT on its website(s), after
consultation with and approval by OCTA, which shall not be unreasonably withheld.
ARTICLE 24. PATENT AND COPYRIGHT INFRINGEMENT
A. In lieu of any other warranty by OCTA or CITY against patent or copyright infringement,
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AGREEMENT NO. C-1-2394
statutory or otherwise, it is agreed that CITY shall defend at its expense any claim or suit against OCTA
on account of any allegation that any item furnished under this Agreement or the normal use or sale
thereof arising out of the performance of this Agreement, infringes upon any presently existing U. S.
letters patent or copyright and CITY shall pay all costs and damages finally awarded in any such suit or
claim, provided that CITY is promptly notified in writing of the suit or claim and given authority,
information and assistance at CITY's expense for the defense of same. However, CITY will not
indemnify OCTA if the suit or claim results from: (1) OCTA's alteration of a deliverable, such that said
deliverable in its altered form infringes upon any presently existing U.S. letters patent or copyright; or (2)
the use of a deliverable in combination with other material not provided by CITY when such use in
combination infringes upon an existing U.S. letters pateOfor copyright.
B. CITY shall have sole control of the defense of anv such claim or suit and all negotiations for
not
consent or in the event" .00TA fails
1, however, that said!-defense>shall t
as a resuitot such suit or claim; ci i Y, at no
to use and sell said item, or, shall substitute.an equivalent item acceptable to OCTA and extend this
patent and copyright indemnity thereto.
ARTICLE 26. RESTORATION ACTIVITIES WITHIN FUNDING LIMITATIONS
A. In order to ensure the accuracy of the PROJECT for the benefit of the EMP and OCTA's
budget process, CITY shall accomplish the PROJECT activities required under this Agreement so as to
perform the restoration work at a price that does not exceed the estimated cost as set forth by CITY.
B. CITY will promptly advise OCTA if it finds that the PROJECT will exceed or is likely to
exceed the funding limitations and it is unable to perform restoration work within these limitations. Upon
receipt of such information, OCTA will review CITY's revised estimate of restoration work. OCTA may
authorize changes in PROJECT activities upon CITY conferring with OCTA and Wildlife Agencies.
ARTICLE 26. ALCOHOL AND DRUG POLICY
A. CITY agrees to establish and implement an alcohol and drug program that complies with
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AGREEMENT NO. C-1-2394
41 U.S.C. sections 701-707, (the Drug Free Workplace Act of 1988), which is attached to this
Agreement as Exhibit B. CITY agrees to produce any documentation necessary to establish its
compliance with sections 701-707.
B. Failure to comply with this Article may result in nonpayment or termination of this
Agreement.
ARTICLE 27. HEALTH AND SAFETY REQUIREMENTS
ARTICLE 28. CITY SHALL COMPLY WITH ALL OF THE REQUIREMENTS SET FORTH IN
EXHIBIT C LEVEL 1 SAFETY SPECIFICATIONS. AS USED THEREIN
IIf+IT/1f CIJAI 1 RA=A 1.1 66~NUQI 11 TA\IT 19 CAOf%C RAA 101 IE2C
This Agreement shall be made effective upon execution by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. C-1-2394 to be
executed on the date first above written.
CITY OF COSTA MESA ORANGE COUNTY TRANSPORTATION AUTHORITY
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By
Gary Monahan
Mayor
APPROVED AS TO FORM:
By
Kimberly Barlow
City Attorney
AGREEMENT NO. C-1-2394
By
Will Kempton
Chief Executive Officer
APPROVED AS TO FORM:
By
Kennard R. Smart, Jr.
General Counsel
APPROVED:
Rv
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BUDGET ADJUSTMENT AUTHORIZATION
Unit
CITY
Department
Public Services
Division
Engineering
Serial Number
11-012
Type of Transaction
Program
Reason for Request:
® Revenue Estimate
® Expenditure Appropriation
CITY
® Estimate Increase
❑ Intra -Departmental Transfer
To increase revenue and appropriate funding from a grant
❑ Estimate Decrease
❑ Inter -Departmental Transfer
from OCTA for Fairview Park Wetlands and Riparian Habitat
® Source
El Transfer
Project in the Measure M2 Capital Improvement Fund, as
-
®Appropriation Increase
recommended to Cit Council on February 15, 2011.
Y �
❑ From Existing Budget Appropriations
415
19500
® From Donations, Fees, or Grants
❑ Appropriation Decrease
❑ From Unappropriated Fund Balance
-
Unit
Account
Name
Fund
Organization
Program
Project/Grant
Increase
Decrease
CITY
430310
Grant — OCTA Measure M2
415
19500
40112
-
$2,000,000
-
CITY
500000
FP Wetlands and Riparian Habitat Project
415
19500
40112
700067
$2,000,000
-
Department Authorization:
Department Director Date
Recommendation: ® Approval
Reasons For Disapproval:
Director of Finance
❑
Disapproval
Date
City Manager Action:
❑ Approved ❑ Disapproved
City Manager
❑
Not Required
Date
Budget Verification:
The above information has been reviewed, is complete and accurate, and
and/or unappropriated funds are sufficient to support the request.
® Yes ❑ No
Budget and Research Officer
the appropriations
Date
City Council Action:
❑ Approved ❑ Disapproved
❑
Not Required
Date